This newspaper and its editorial staff — both current and former — are the targets of unprecedented grand jury subpoenas dated August 24.
The authorities are also using the grand jury subpoenas in an attempt to research the identity, purchasing habits, and browsing proclivities of our online readership.
It is, we fear, the authorities’ belief that what you are about to read here is against the law to publish. But there are moments when civil disobedience is merely the last option. We pray that our judgment is free of arrogance.
These are the issues as we understand them.
In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and their increasingly unhinged cat’s paw, special prosecutor Dennis Wilenchik, used the grand jury to subpoena “all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present.”
Every note, tape, and record from every story written about Sheriff Arpaio by every reporter over a period of years.
In addition to the omnibus subpoena, which referred to our writer Stephen Lemons directly, reporters John Dougherty and Paul Rubin were targeted with individual subpoenas.
More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed information on anyone who has looked at the New Times Web site since 2004.
Every individual who looked at any story, review, listing, classified, or retail ad over a period of years.
The seemingly picayune matter of Sheriff Arpaio’s home address getting printed at the bottom of an opinion column on our Internet site — and the very real issue of commercial property investments the sheriff hid from public view — have now erupted into a courtroom donnybrook against a backdrop of illegal immigration disputes, Mexican drug cartels, the Minutemen, political ambition, and turf disputes between prosecutors and the judiciary.
And given the diva-like drama that Arpaio attaches to even the mundane, you can add to the grand jury tension the paranoia of a Keystone Kops assassination “plot” against “America’s toughest sheriff.”
Behind these operatic and public developments, an ethical stain has spread over the secret proceedings of the grand jury.
Special prosecutor Wilenchik has sabotaged the integrity of the investigation.
Not content with using the hidden power of sweeping grand jury subpoenas, the government’s lawyer attempted to get the ear of the sitting judge — out of earshot of New Times’ attorneys.
Special prosecutor Wilenchik used a politically potent emissary in a behind-the-curtain attempt to set up a meeting between the judge overseeing the grand jury and Wilenchik.
In a hastily called hearing October 11, the judge labeled Wilenchik’s attempt to set up an ex parte discussion “absolutely inappropriate.”
In our humble opinion, Wilenchik’s clumsy intervention behind the scenes with the judge was well beyond “inappropriate.” Wilenchik’s behavior raised the issue of an attempt to rig a grand jury already veiled in official secrecy.
In our deliberations, we faced the obvious: A grand jury investigation is a fearsome thing; a tainted grand jury is a tipping point.
We intend now to break the silence and resist.
This is hardly the first time — even if the scope here is breathtaking — that law enforcement attempted to use a grand jury to get at the confidential records of reporters or editors. But the contemptuousness of this troika of ambitious politicos is reflected in their attempt to target the readers of New Times.
In a grandiose insult to the Constitution, Arpaio, Thomas, and Wilenchik used the grand jury to subpoena the online profiles of anyone who viewed four specific articles on the sheriff.
The pertinent section of the secret grand jury subpoena reads, in part: “All internet web site information for the Phoenix New Times internet site related to the web pages . . . [four specific articles on the sheriff]. The information should include, but not be limited to: The Internet Protocol addresses of any and all visitors to each page of . . . [four specific articles on the sheriff]. . .”
Energized, perhaps, by this mugging of Constitutional safeguards, Arpaio, Thomas, and Wilenchik then shot the moon. The grand jury subpoena also demands Web site profiles of anyone and everyone who visited New Times online over the past two and a half years, not merely readers who viewed articles on the sheriff.
The subpoena demands: “Any and all documents containing a compilation of aggregate information about the Phoenix New Times Web site created or prepared from January 1, 2004 to the present, including but not limited to :
A) which pages visitors access or visit on the Phoenix New Times website;
B) the total number of visitors to the Phoenix New Times website;
C) information obtained from ‘cookies,’ including, but not limited to, authentication, tracking, and maintaining specific information about users (site preferences, contents of electronic shopping carts, etc.);
D) the Internet Protocol address of anyone that accesses the Phoenix New Times website from January 1, 2004 to the present;
E) the domain name of anyone that has accessed the Phoenix New Times website from January 1, 2004 to the present;
F) the website a user visited prior to coming to the Phoenix New Times website;
G) the date and time of a visit by a user to the Phoenix New Times website;
H) the type of browser used by each visitor (Internet Explorer, Mozilla, Netscape Navigator, Firefox, etc.) to the Phoenix New Times website; and
I) the type of operating system used by each visitor to the Phoenix New Times website.”
Special prosecutor Wilenchik wants this information on each and every New Times reader online since 2004.
New Times attorneys Tom and Janey Henze responded to the grand jury subpoenas with a motion to quash the overwhelmingly intrusive effort by authorities to seize the newspaper’s confidential records, and a motion to make the subpoena public.
While this motion is under consideration by the court, the paper’s attorneys asked that the subpoenas be stayed — that is, held in check — until a decision is rendered.
The Henzes further asked the court to remove Wilenchik from the case for conflicts of interest, including disparaging e-mails he wrote about New Times and writer John Dougherty. This would not end the grand jury probe, but merely compel County Attorney Thomas to find a prosecutor without a recent history of gross bias, conflict of interest, and inappropriate behavior.
Attorney Michael Meehan, also representing New Times, filed briefs in federal court challenging the constitutionality of the state statute prohibiting publication of home addresses of law enforcement officials on the World Wide Web.
Wilenchik resisted these efforts and filed a countermotion to strike presiding Maricopa County Criminal Court Judge Anna Baca from the case. He also filed paperwork asking for a hearing to show cause why New Times should not be held in contempt for our refusal to turn over any records.
While these motions were pending, Wilenchik, in a wildly inflammatory move, had an intermediary phone Judge Baca on October 10 to suggest a meeting.
“I have no idea why Mr. Wilenchik wanted to speak to me,” Judge Anna Baca told a rapt audience of attorneys and grand jury targets from New Times at a hearing inside a locked-down courtroom on Thursday, October 11.
The judge called the hastily convened hearing within hours of receiving the call at her home.
Clearly agitated, the judge characterized the contact as “inappropriate.”
Political operative Carol Turoff phoned Baca at the judge’s residence the Wednesday evening before the hearing.
According to Baca, Turoff said special prosecutor Dennis Wilenchik wished to speak with the judge.
Baca quickly put an end to the conversation with Turoff explaining that she refused to listen to any such proposal.
“I was taken aback that I got such a call,” said Baca.
Indeed. Within hours, the judge notified all parties that she wanted an immediate status hearing in her closed courtroom.
Carol Turoff, who phoned Baca, is a recent two-term member of the Commission on Appellate Court Appointments. During her eight years of service, she helped select four of the five sitting Arizona Supreme Court justices. Additionally, she deliberated on the selection of 17 judges of the Arizona Court of Appeals. While her term expired in 2004, she has remained highly active politically and was an early supporter of County Attorney Andrew Thomas.
Larry Turoff, her husband, was appointed a senior member of County Attorney Thomas’ management team following the election.
Faced with the judge’s declaration from the bench that she’d been contacted by a seasoned political operative whose very fields of influence were judicial appointments — not to mention pillow-talk insight into the prosecutor’s office — Wilenchik was equal parts insulting, evasive, and defiant.
The special prosecutor said initially that since he had not participated in the conversation between Turoff and Baca, he could not say that it was an accurate recounting.
“It is, counsel,” countered the judge, who pointed out that she had taken notes.
“I did not order or tell Carol Turoff to do anything,” said Wilenchik.
Baca pointed out that Turoff revealed that the idea of a meeting between the special prosecutor and the judge was not Carol Turoff’s idea but, in fact, originated with Wilenchik.
The special prosecutor rambled a bit as he attempted to suggest that he really had not wanted to discuss any of the grand jury proceedings with Judge Baca. He was more interested, he claimed, in “a global conversation” about relations between the courts and the County Attorney’s Office.
Even if he’d suggested as much to Turoff, such an implausible alibi would hardly have laundered his attempt to have a private huddle with the judge. The relationship between the Superior Court, Wilenchik, and the County Attorney was itself the subject of sensitive motions, making Wilenchik’s approach to Baca unethical, no matter which explanation he selected.
And the fact of the matter is that the subject in front of Judge Baca was New Times.
Already facing unprecedented grand jury subpoenas that threatened the newspaper’s independence, those of us present in the courtroom now faced the obvious conclusion that special prosecutor Wilenchik attempted to subvert the process by getting to the judge.
Wilenchik’s attempt to contact the judge outside the presence of our attorneys is not a gray area.
Lawyers have a term for this behavior: ex parte, or ” . . . one side only, as in a controversy; in the interest of one party.”
The Arizona Rules of Professional Conduct are unequivocal: “A lawyer shall not communicate ex-parte with such a person (judge, juror, prospective juror) during the proceeding . . .”
Were it not for Judge Anna Baca’s impeccable character, her willingness to short-circuit the conversation with friend Carol Turoff at the same time that she made a record of the approach, Wilenchik’s brazen tactic would never have surfaced.
And yet he remains the special prosecutor.
There will be many questions about our decision to make public the secret machinations of the special prosecutor armed with grand jury powers.
Consider this: When the wife of a senior member of County Attorney Andrew Thomas’ management team feels free to contact the sitting judge, and when the special prosecutor who initiated this idea of an ex-parte meeting sees nothing wrong with conduct his own profession prohibits, we feel compelled to shed light upon these remarkable proceedings.
And make no mistake: Special prosecutor Wilenchik sees nothing wrong with what he did.
Judge Baca told the prosecutor that it was “absolutely inappropriate.”
“With all due respect,” argued Dennis Wilenchik, “it was absolutely appropriate.”
It is little wonder that special prosecutor Wilenchik found nothing inappropriate about his ex parte contact with Judge Baca; his instinct to engage in subversive tactics underscores his lack of professional ethics.
On October 3, precisely one week before Turoff phoned Judge Baca, Wilenchik smeared Superior Court Judge Timothy Ryan in an orchestrated campaign that is part of County Attorney Thomas’ anti-illegal immigration strategy. Phoenix New Times